from the not-a-good-ruling-at-all dept

As others have noted, the European Court of Human Rights has rejected appeals from two founders of The Pirate Bay, Peter Sunde and Fredrik Neij, of their conviction under Swedish law. The decision is worth reading in its entirety, in that it tries to lay out a "balanced" approach concerning freedom of expression against other rights, such as copyright, and appears to come down on the side of saying copyright is more important than freedom of expression. That seems like a dangerous outcome in a variety of ways.

The court quite readily admits that forcing Sunde and Neij to block content from being exchanged via TPB violates their free expression rights, but says that this is a legitimate restriction on such rights:

In the present case, the applicants put in place the means for others to
impart and receive information within the meaning of Article 10 of the
Convention. The Court considers that the actions taken by the applicants are
afforded protection under Article 10 § 1 of the Convention and,
consequently, the applicants' convictions interfered with their right to
freedom of expression. Such interference breaches Article 10 unless it was
"prescribed by law", pursued one or more of the legitimate aims referred to
in Article 10 § 2 and was "necessary in a democratic society" to attain such
aim or aims.

They then look at whether or not the restriction of free expression was "prescribed by law" and conclude that it was, because it happened under the Copyright Act, and there was a "legitimate aim" behind the convictions. That's pretty broad, of course. It also looks at whether or not this restriction was "necessary in a democratic society," which is where it spends the most of its time.

The court seems heavily influenced by the fact that TPB did not remove torrents when asked to do so, despite no law requiring such actions. Furthermore, that sets a bizarre and dangerous precedent that just because someone "urges" you to remove content from an internet website or service, that you must do so or be held liable for it.

The part that troubles me most, however, is that the court more or less completely sidesteps the questions of secondary liability. While it mentions, a few times, that both Sunde and Neij have pointed out that TPB was just the service provider, and any actual infringement was done by users, it never properly addresses this issue, other than to suggest that secondary liability is perfectly reasonable. For those of us who have studied just how important protections for secondary liability are in promoting innovation, this suggests a very dangerous precedent for innovation in Europe. When service providers -- or even those who just worked on the platform -- are held directly liable for actions of their users, you create a very big chilling effect on other companies and services. While it may be more understandable for Neij, who worked directly on building and maintaining the site, Sunde's connection to the actual operations has always been remote. The EHCR reiterates the silly point that, among other things, Sunde "configured a load balancing service for TPB" as if that has anything to do with the overall operations of the site. While it does also talk about his minimal work in working with advertisers on the site, setting up a load balancer and advertising relationships are perfectly legitimate activities, and have nothing to do with any infringement that may have occurred on the site.

Having recently watched the documentary on the TPB trial, TPB AFK (and recognizing that it likely does not tell the full story in the short time frame allowed in a documentary flick), you begin to recognize that there is something of a language and technology literacy gap between those prosecuting the TPB founders and the founders themselves, and, if anything, I think that contributes to the situation the founders are in now. Many of their explanations make perfect sense from a technology standpoint, and are completely obvious, normal things that any online service would do. But, the founders seem to think that these things are so obvious and so non-troublesome that they don't appear to do a very good job of explaining them in ways that the court would understand. It's for that reason that I think the case has not gone that well for the founders. It often appears that they assume that those who are judging them (and prosecuting them) have a level of technological literacy and sophistication that they do not have. There would be ways to dumb down the arguments for why they should be protected under secondary liability theories, but it almost appears that the founders believe that it is the responsibility of those in the court to understand the more sophisticated arguments. I can certainly understand where such a position comes from -- and it makes sense in an ideal world. But in the real world, where that sophistication is lacking, the TPB founders glib explanations for the actions taken come off as semantics and rationalizations, rather than a compelling judicial argument. That is unfortunate, because the end result is a decision like the one today.